French case law had long adopted a particularly strict approach to infringements of employees’ freedom of expression, holding that any disciplinary sanction imposed in breach of that freedom was null and void. An employer could only lawfully sanction an employee where an “abuse” of that freedom was established.
By a series of three published rulings dated 14 January 2026 (Cass. soc., 14 Jan. 2026, Nos. 23-19.947, 24-19.583, 24-13.778), the French Supreme Court however seems to have modified its case law, holding that judges must carry out a balancing exercise between the employee’s freedom of expression and the employer’s legitimate interests, applying a test of necessity and proportionality.
Although the Supreme Court reiterates that employees enjoy freedom of expression both inside and outside the workplace, specifying that any restrictions must be justified and proportionate (pursuant to article L.1121-1 of the French Labour Code), it has clarified the methodology to be followed where an employee argues that a disciplinary sanction — in particular dismissal — infringes their freedom of expression.
Where an infringement of that freedom is alleged, courts must conduct a case-by-case assessment of:
- The content of the statements (or expression at issue);
- The context in which they were made or disseminated;
- Their scope, level of publicity, and impact within the company;
- The alleged negative consequences (disruption, harm to individuals, tensions, etc.);
Judges must then determine whether the disciplinary measure was necessary, appropriate, and proportionate to the legitimate aim pursued.
In on of the three cases at hand, the Court held that the dismissal measure was necessary and proportionate to the objective of protecting those in care and ensuring the safety of their support arrangements, so much that the dismissal was upheld.
This constitutes a real shift in established case law, replacing a traditionally rigid approach with a structured balancing test grounded in necessity and proportionality.
